Thursday, December 17, 2015

MTSA Secure and Restricted Areas

More Thoughts on the Secure Area Concept

<>  From October 2015 Waves on the Waterfront.

 This was a good short general discussion of the definitions of restricted and secure areas. However, one of the sources of confusion about secure areas is repeated in this discussion. It appears because it exists in the regulation, i.e., secure area as that area over which the owner has implemented security measures for access control.[1] Because many facilities have areas over which the owner has implemented security measures for access control where a TWIC is not required, this definition is puzzling. For example, the facility has a main office immediately inside the single fence that encircles the entire facility. TWIC cards are not required to access the office, according to the approved FSP, yet the office is within that area over which the owner has implemented security measures for access control. This seems to be in contradiction to the definition of secure area.

Even at this late date, years after TWIC implementation, there is still widespread misunderstanding about these two terms, secure and restricted areas. The idea of “secure area” has several concepts embedded within it. 
  • ·         Designating areas as restricted, secure, or both adds additional layers of security. 
  • ·         The secure area must have a maritime nexus, because the secure area is the area where persons need a TWIC for unescorted access and the purpose of the card itself is to ensure that only persons who have undergone the TWIC background checks have unescorted access to these high-risk, TSI-prone areas in facilities and vessels.
  • ·         Secure areas are a security measure described out in the FSP so to a certain extent they can be fluid across the system, and are subject to the judgement of the individual Coast Guard unit that approves the FSP.  The only secure area that will be guaranteed to be designated as such across the system, from the largest facility in the country to Laurie’s Sand & Gravel Dock, is the area immediately adjacent the vessel (that triggers the FSP) when the vessel is at the dock.[2]

For purposes of clarification, it might be useful if 33 CFR 101.105 be amended to read “Secure area means the area on board a vessel or at a facility or outer continental shelf facility over which the owner/operator has implemented security measures for access control where a TWIC card is required for unescorted access, in accordance with a Coast Guard approved security plan.” In all secure areas, TWIC cards are required for unescorted access. It seems odd therefore to exclude this important concept from the definition.

To keep the two concepts clear in the mind, it is less helpful to contrast them than to simply remember the following:
  • ·         Restricted areas require limited access and a higher degree of security protection[3]; a  list of areas that must be designated as restricted, as appropriate for the facility, is  given in 33 CFR 105.260(b).
  • ·         Secure areas are those areas where persons need a TWIC for unescorted access. There can be no secure area that is not connected with TWIC card use.

[1] 33 CFR 101.105, definition of secure area.
[2]  Navigation and Inspection Circular 03-07, enc. 3.
[3] 33 CFR 101.105, definition of restricted area.

Wednesday, December 16, 2015

On December 15 2015, the Department of Homeland Security issued its Semiannual Regulatory Agenda. As Dennis Bryant so aptly puts it, “this agenda is aspirational in nature.” This means DHS hopes that the given timetables will be met. Below is MTSA-related information from the Agenda, with my comments. The full agenda can be found at

Updates to Maritime Security
Abstract: The Coast Guard proposes certain additions, changes, and amendments to 33 CFR, subchapter H. Subchapter H is comprised of parts 101 through 106. Subchapter H implements the major provisions of the Maritime Transportation Security Act of 2002 (MTSA). This rulemaking is the first major revision to subchapter H. The proposed changes would further the goals of domestic compliance and international cooperation by incorporating requirements from legislation implemented since the
original publication of these regulations, such as the Security and Accountability for Every (SAFE) Port Act of 2006, and including international standards such as Standards of Training, Certification & Watchkeeping security training. This rulemaking has international interest because of the close relationship between subchapter H and the International Ship and Port Security Code (ISPS).

NPRM .................. 07/00/16

Comments: At this point, I can’t speculate when this update will be issued, or how outdated it will be  when it finally comes out. It’s obvious to MTSA practitioners that an update needs to be made. Absent this update, industry and regulators end up operating from NVICs and PACs and policy letters and other documents, not an ideal situation from either an industry or a regulator’s point of view. PACs and letters under CF-FAC signature aren’t regulations. They lack the industry comment that is an integral part of the regulatory process. The regulatory process seems to have evolved into a process too cumbersome for today’s fast moving workplace.

Seafarers’ Access to Maritime Facilities
Abstract: This regulatory action will implement section 811 of the Coast Guard Authorization Act of 2010 (Pub. L. 111–281), which requires the owner/operator of a facility regulated by the Coast Guard under the Maritime Transportation Security Act of 2002 (Pub. L. 107–295) (MTSA) to provide a system that enables seafarers and certain other individuals to transit between vessels moored at the facility and the
facility gate in a timely manner at no cost to the seafarer or other individual. Ensuring that such access through a facility is consistent with the security requirements in MTSA is part of the Coast Guard’s Ports, Waterways, and Coastal Security (PWCS) mission.
 The timetable on this rule is:
 NPRM .................. 12/29/14
NPRM Comment Period Reopened…05/27/15
NPRM Comment Period End…07/01/15
Final Rule ............ 02/00/16
Comments:  I would not be surprised to see this final rule issued in first quarter 2016. This regulation will (almost certainly) require action on the part of all MTSA facilities, including a new FSP section. Interesting example of a narrowly-focused regulation that sped through the process, despite an extended comment period. We need to keep in mind, however, the many Coast Guard actions that preceded this reg.

Transportation Worker Identification Credential (TWIC); Card Reader Requirement

Concerning the TWIC Reader rule (Transportation Worker Identification Credential (TWIC); Card Reader Requirement) the Agenda states: Regulatory Plan: This entry is Seq. No. 62 in part II of this issue of the Federal Register.

Comment: There is no Part II to this issue of the FR, so I am assuming that this is just one more puzzling  aspect of the TWIC program.